Pegasus Snoopgate: RS MP, Journalists move SC for court monitored probe

Supreme Court Image Courtesy:indianexpress.com

Rajya Sabha Member of Parliament John Brittas, and senior journalists N Ram and Sashi Kumar have approached the Supreme Court in two separate petitions, seeking a court monitored probe into allegations of use of Pegasus spyware for “surveillance” of citizens.

On Sunday, July 18, it had been revealed that the Israeli spyware Pegasus had been used to target many journalists including over 40 from India. The Wire news portal broke the story in India, and its founding editors Siddharth Varadharajan, and MK Venu were on the list of journalists being tracked along with their investigative writer Rohini Singh and others. Journalists from the Hindustan Times, among others, were also on the list.

In a complete state of denial, the newly appointed Minister for Information Technology, Ashwini Vaishnaw had stated in Parliament on July 19 that there was no substance behind the snooping reports and that it was an attempt to malign the Indian democracy.

“Hon’ble Speaker Sir, when we look at this issue through the prism of logic, it clearly emerges that there is no substance behind this sensationalism”, read his statement. In fact, during the budget session early this year, Lok Sabha members Dr. T. Sumathy and Maneka Sanjay Gandhi had posed a question pertaining to surveillance of the Minister of State for Electronics And Information Technology, Sanjay Dhotre on March 24, 2021.

They had asked whether the Government has found the presence of spywares or surveillance software such as Pegasus spyware in the country. Without disclosing any details, the Minister had stated in his written answer, “There is no such information available with the Government.”

On July 26, the West Bengal government appointed a two-member Commission headed by retired judge of the Supreme Court, Justice Madan Lokur and Calcutta High Court Chief Justice Jyotirmay Bhattacharya to inquire into the Pegasus scandal.

The notification appointing the Commission may be read here:

John Brittas’ plea

The public interest litigation (PIL) filed by Brittas prays for directing the Centre to conduct an immediate investigation through a special investigating team, which would be monitored by the Supreme Court of India. He has alleged in his PIL that the Pegasus snooping allegations have caused huge apprehensions and great agony to the citizens, and that such snooping violates a citizen’s freedom of speech under Article-19 (1) (a) as well as his/her personal liberty under Article 21 of the Constitution of India. “Only a proper court monitored investigation can alleviate these apprehensions and agonies,” the plea states.

The PIL also states that snooping, phone tapping, wiretapping, line bugging or monitoring of the phone or internet-based conversations by a third party, often by covert acts is a critical invasion into an individual’s privacy. It also mentions that lawful interceptions of electronic communications are made as per relevant rules under the provisions of Section 5(2) of Indian Telegraph Act, 1885, Section 69 of the Information Technology (Amendment) Act, 2000, Section-92 of CrPC and Rule 419(a) of the Indian Telegraph Rules. Despite the existence of these provisions, the aspect that the spy software was installed in the phones and computers, without following any procedures, caused agony among right thinking people of India as their right to privacy guaranteed under Article 21 was violated.

The Wire had also reported that the woman, who accused the former Chief Justice of India, Ranjan Gogoi of sexual harassment, also featured in the list of targets along with some of her family members. Brittas’ PIL mentions this fact and states, “This shocking revelation may cast a shadow on the esteem of the public in the independence of Judiciary and Rule of Law.”

His PIL also refers to the Puttaswamy judgment (K.S. Puttaswamy v. Union of India, 2017 10 SCC 1), to contend that if the Pegasus Spyware was used in an unauthorised manner which is in violation of fundamental rights under Articles 19(1)(a) and 21, it is also a slap on the face of right to privacy upheld by this Supreme Court in the said case. He has also pointed out that many CBI officers have also been targeted for surveillance which shows that either the Government has no trust upon its own investigating officers or that some external agencies are accessing the highly confidential data of the topmost investigating agency, thereby threatening the unity and integrity of the nation.

Pegasus is a spyware suite sold by the Israeli company NSO Group, that has been embroiled in legal cases before. John Brittas’ PIL cites the example of a 2019 case wherein WhatsApp and Facebook had sued NSO before the United District Court Northern District of California. NSO, had also admitted the use of Pegasus to spy on some 1,400 WhatsApp users. Its affidavit, as per John’s PIL stated, “there is no dispute the alleged use of Pegasus to message 1,400 foreign WhatsApp users in April and May 2019 was done by sovereign governments in foreign countries.” But it had denied WhatsApp’s allegation of this being a cyber-attack and had told the court that it only played a “tech support role as the sovereign’s agent” while the actual deployment of the spyware was carried out by the sovereign governments. The California Court had however, ruled in favour of WhatsApp and dismissed NSO’s claim to sovereign immunity. Tech giants like Google, Microsoft, Internet Association, Git Hub and LinkedIn also had joined the motion against NSO in this legal motion before the court.

On July 26, at an online discussion co-organised by Free Speech Collective , NWMI and SabrangIndia on the implications of Pegasus Project, (India’s Deep State: Is any citizen safe?) and targeted surveillance and violation of privacy by the Indian government, crucial questions regarding an individual’s autonomy, security and privacy had been raised.

PIL filed by N Ram and Sashi Kumar

Senior Journalists N Ram and Sashi Kumar have sought for an independent inquiry headed by a sitting or retired judge of the Supreme Court to probe into the allegations of the illegal surveillance, and consequent directions in terms of the report or recommendations of the independent inquiry. Their plea states that, “Such mass surveillance using a military-grade spyware abridges several fundamental rights and appears to represent an attempt to infiltrate, attack and destabilise independent institutions that act as critical pillars of our democratic set-up.”

Besides the Puttaswamy judgment, the duo’s plea cites Tehseen Poonawala vs Union of India (2018) 9 SCC 501, while contending that targeted hacking/interception of journalists, doctors, lawyers, civil society activists, government ministers and opposition politicians seriously compromises the effective exercise of the fundamental right to free speech and expression under Article 19(1)(a), that has a chilling effect on expression by threatening invasion into the most core and private aspects of a person’s life.

Section 5(2) of the Telegraph Act states that only in situation of a “public emergency” or “in the interest of the public safety”, the Centre or the State can authorise interception of messages or surveillance. Their plea argues that this provision has been completely bypassed and that the existence of such conditions must be inferred “reasonably and cannot be determined solely on the assessment of the government”. Their PIL refers to People’s Union of Civil Liberties vs Union of India (1997) 1 SCC 301, where the court had laid down several procedural safeguards like a review committee for exercise of section 5(2) of the Telegraph Act, “so that the right to privacy of a person is protected.”

Furthermore, they have contended that the hack/interception/decryption occasioned by the Pegasus spyware constitutes a criminal offence punishable under Section 66 (computer related offences), 66B (punishment for dishonestly receiving stolen computer resource or communication device), 66E (punishment for violation of privacy) and 66F (punishment for cyberterrorism) of the Information Technology Act, punishable with imprisonment and/or fine. “The attack prima facie constitutes an act of cyber-terrorism that has several grave political and security ramifications, especially considering that the devices of government ministers, senior political figures and constitutional functionaries which may contain sensitive information have been targeted,” reads the PIL.

Common issues raised in the petitions

Both petitions before the Supreme Court emphasise the need for judicial oversight – a court monitored probe into the grave allegations of surveillance – that impinge on a person’s constitutionally protected rights to privacy and personal liberty.

The pleas have raised concerns about the brazen violation of provisions laid down in the Indian Telegraph Act, The Information Technology (Amendment) Act, 2000, and the Telegraph Rules, 1951. For instance, Rule 419A of the Indian Telegraph Rules provides that any direction for interception of any message or class of messages under sub-section (2) of Section 5 of the Indian Telegraph Act, 1885, shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs.

Both PILs have also referred to the case against NSO in 2019 before a California court as a very strong precedent. Finally, another commonality in the petitions is that both highlight the Government of India’s callous response towards such serious allegations and their subsequent reluctance into investigating such unauthorised surveillance.

In the latest turn of events, according to a report in The Record, officials from multiple Israeli government agencies have raided the offices of surveillance software vendor NSO Group in light of growing allegations. An NSO spokesperson while speaking to The Record confirmed this news and said, “We can confirm that representatives from the Israeli Ministry of Defense visited our offices. We welcome their inspection. The company is working in full transparency with the Israeli authorities. We are confident that this inspection will prove the facts are as declared repeatedly by the company against the false allegations made against us in the recent media attacks.”